http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 16  

PETITIONER: SAKAL PAPERS (P) LTD., AND OTHERS

       Vs.

RESPONDENT: THE UNION OF INDIA

DATE OF JUDGMENT: 25/09/1961

BENCH: MUDHOLKAR, J.R. BENCH: MUDHOLKAR, J.R. SINHA, BHUVNESHWAR P.(CJ) SARKAR, A.K. GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA

CITATION:  1962 AIR  305            1962 SCR  (3) 842  CITATOR INFO :  MV         1967 SC   1  (19,103)  F          1973 SC 106  (12,14,18,23,33,34,42,66,79,83  R          1974 SC1044  (15)  E&R        1978 SC  68  (93)  R          1978 SC 597  (41,67,77,131,182,202)  R          1980 SC 898  (55)  R          1986 SC 515  (33,38,64,85,39)  R          1986 SC 872  (74,75)  RF         1988 SC1136  (27)

ACT: Fundamental   Right-Freedom  of  speech-Statute   regulating number  of pages in newspaper according to  price  charged-- Constitutionality  of--Newspaper (Price and Page) Act,  1956 (45  of 1956)-Daily Newspaper Price and Page)  Order,  1960- Constitution of India, Art, 19 (1) (a).

HEADNOTE: The  Newspaper  (Price and Page) Act,  1956,  empowered  the Central  Government to regulate the prices of newspapers  in relation  to  their  pages and sizes  and  to  regulate  the allocation of space for advertising matter.  Under this  Act the Central Government made the Daily Newspapers (Price  and Page)  Order,  1960, thereby fixing the  maximum  number  of pages  that might be Published by a newspaper  according  to the price charged and prescribing the number of  supplements that-could be issued.  The petitioner challenged the Act and the  order as contravening Art. 19 (1) (a) of the  Constitu- tion. Held, that the Act and the Order were void as they  violated Art.  19(1) (a) of the Constitution and A were not saved  by Art. 19(2).  The freedom of speech and expression guaranteed by  Art. 19(1) (a) included the freedom of the  press.   For propagating  his  ideas a citizen had the right  to  publish them,  to disseminate them and to circulate them, either  by word of mouth or by writing.  The right extended not  merely to the matter which he was entitled to circulate but also to the                             843

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 16  

volume  of circulation.  The impugned Act and  Order  placed restraints on the latter aspect of the right.  But its  very object  the  Act was directed against circulation  and  thus interfered  with  the  freedom  of  speech  and  expression. Article 19(2) did not permit the State to abridge this right in the interests of the general public. Brij  Bhushan  v. The State of Delhi, [1950] S.  C.  R.  605 Express Newspapers (p) Ltd. v. The Union of India, [1959] S. C.  R. 12, Ramesh Thappar v. State of Madras  [1950]  S.C.R. 594,  State  of Madras v. V. G. Row, [1952] S.  C.  R.  597, Dwarkadas  Shrinivas  v.  The Sholapur  &  Weaving  Co.,Ltd. [1954] S. C. R. 674, Virendra v. The State of Punjab, [1958] S. C. R. 308 and Hamdard Dawakhana (wakf) v. Union of India, [1960] 2 S. C. R. 67 1, referred to. Held,  further,  that the State could not make a  law  which directly restricted one guaranteed freedom for securing  the better  enjoyment  of another freedom.   Freedom  of  speech could  not be restricted for the purpose of  regulating  the commercial aspect of the activities of newspapers.

JUDGMENT: ORIGINAL JURISDICTION : Petitions Nos. 331 of 1960 and 67-68 of 1961. Petitions  under  Art. 32 of the Constitution of  India  for enforcement of Fundamental Rights. G.   S.  Pathak,  R.  Ganapathy Iyer, S. S.  Shukla  and  G. Gopalakrishnan for the petitioners. M.   C. Setalvad, Attorney-General of India, B.   Sen, R. H. Dhebar and T. M. Sen, for the respondent. H.   P. Nathwani, J. B. Jadachanji, S. N. Andley,  Rameshwar Nath and P. L. Vohra, for the respondent No. 1. J.   B.  Dadachanji, S. N. Andley, Rameshwar Nath and P.  L. Vohra, for the interveners Nos. 2 and 6. K.   R. Choudhri, for intervener No. 3. S.   T.  Desai,  E.  Udayarathnam  and  S.  S.  Shukla,  for intervener No. 4. W.   S. Barlingay and A. G. Ratnaparkhi, for intervener  No. 5. S.  T.  Desai,  E. Udayarathnam and S. S.  Shukla,  for  the petitioners (In petitions Nos. 67 and 68 of 1961). 844 1961.  September 25 The Judgment of the Court was  delivered by MUDHOLKAR, J.-A matter of far-reaching importance  affecting the freedom of the press is raised in these three  petitions wherein  the constitutionality of the Newspaper  (Price  and Page)  Act, 1956, and the Daily Newspaper (Price  and  Page) Order, 1960, is questioned. The first petition is by a private limited company  carrying on  business  inter  alia of  publishing  daily  and  weekly newspapers  in Marathi named "Sakal" from Poona and  by  two persons who are the only shareholders in that company.   The second  and third petitions are preferred by two readers  of "Sakal" who also challenge the constitutionality of the Act. Certain  parties were allowed to intervene.  They  supported the  Union of India, the respondent, in all these  petitions and sought to uphold the validity of the Act and the  Order. In view of the common argument adduced before us it would be convenient to deal with the first petition only in full.  The  newspaper "Sakal" was started in the year 1932 and  it is claimed that it has a net circulation of 52,000 copies on week  days and 56,000 copies on Sundays in  Maharashtra  and Karnataka   and  as  such  plays  a  leading  part  in   the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 16  

dissemination  of  news  and views and  in  moulding  public opinion in matters of public interest. The daily addition of the newspaper contains six pages a day for  five  days in a week and four pages on one  day.   This edition  is priced at 7 nP.  The Sunday edition consists  of ten pages and is priced at 12nP.  About 40% of the space  in the  newspaper is taken up by advertisement matter  and  the rest  is &voted to news, articles, features, Views etc.   It is  claimed  on behalf of the petitioners that  one  of  the special  features  of the newspaper is coverage  of  foreign news  and despatches on foreign affairs.  It is  claimed  on behalf of the petitioners that this                             845 paper is not aligned with any political party and that  upon controversial  questions  the  public  look  up  to  it  for impartial  appraisement  of  the  issues  involved  and  for guidance. Briefly  stated  the effect of the Act and of  the  impugned Order  is to regulate the number of pages according  to  the price  charged,  prescribe the number of supplements  to  be publisher   and  prohibit  the  publication  and   sale   of newspapers in contravention of any Order made under s. 3  of the  Act.  The Act also provides for regulating by an  Order under  s.  3, the sizes and area of  advertising  matter  in relation  to  the other matters contained  in  a  newspaper. Penalties  are  also  prescribed for  contravention  of  the provision of the Act or Order. We may mention here that in the year 1952 the Government  of India  appointed  a Press Commission for  enquiring  into  a large number of matters concerning the Press and one of  the recommendations of the Commission was to enact a law such as the  one  impugned before us.  This law is  alleged  by  the respondent  to  have  been  made  to  give  effect  to  that recommendation.   Both  the sides place  reliance  upon  the finding  of  the  Press Commission and have  invited  us  to accept   these   findings,  though   not   necessarily   the recommendations. The  petitioners  point out that since the total  number  of pages which "Sakal" gives to its reading public on six  days in a week is 34, and that as a result of the impugned  Order they will either have to raise its price from 7 nP. to 8 nP. per day or to reduce the total number of pages to 24.   They further  point out that while at present all newspapers  can issue  any  number of supplements as and when  they  choose, under the Order they would be prevented from doing so except with  the permission of the Government.  According  to  them the Order would have the effect of either compelling them to increase  the  price  or to reduce the number  of  pages  of practically every newspaper in the country as 846 also of preventing them from publishing supplements  without extraneous  restrictions,  which  they are  able  to  do  at present. It  is the petitioners’ case that the impugned Act  and  the impugned Order are pieces of legislation designed to curtail and  which would in effect curtail the freedom of the  press end as such are violative of the right guaranteed under Art. 19(1)(a) of the Constitution.  They point out that’ if  they continue to give in their newspaper the same number of pages as at present, they would have to increase its selling price and that this will adversely affect its circulation.  If, on the other hand, they reduce the number of pages in order  to conform  to  the impugned order their right  to  disseminate news  and, views will be directly interfered with.  Thus  in either event there will be an interference with their  right

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 16  

under Art. 19(1)(a) of the Constitution. The  petitioners point out that the impugned Order  reserves to  the  Central  Government the power to  permit  issue  of supplements,  except those on January 26 and August 15,  and that the result of this would be to place them at the  mercy of  the Government and thus interfere with their freedom  of expression. They  further  point  out that the Act  and  the  Order  are violative  of the provisions of Art. 14 of the  Constitution inasmuch  as their avowed object is to  promote  arbitrarily the  interests of some newspaper at the expense  of  others. They contend that inequality is writ large in the provisions of the Act and of the Order and that there is no  reasonable classification or basis or any rational relationship between the  restrictions  imposed  and the  objects  sought  to  be achieved.    According  to  them,  while   the   established newspapers will be hardly affected by these provisions those that  are endeavouring to come up will be hampered in  their progress. 847 On  behalf  of the respondent, the Union of  India,  in  the Ministry  of  Information  and  Broadcasting,  while  it  is admitted  that  the  object of the Act is  to  regulate  the prices charged for newspapers in relation to their pages, it is  pointed  out that this is being done to  prevent  unfair competition  amongst newspapers as also to prevent the  rise of  monopolistic combines so that newspapers may  have  fair opportunities  of  freer  discussion.   The  effect  of  the provisions  of  the  Act is said to be to  provide  for  the maximum matter which a newspaper could make available to the public at a certain price and that this does not in any  way restrict  the rights of the petitioners to  propagate  their ideas.    The  respondent,  while  admitting  that  by   the operation  of the impugned Order a limitation is  placed  on the  space which a newspaper would be able to devote to  the propagation of its ideas and to news, says that it would  be open  to those newspapers to increase the space  by  raising the price.  According to the respondent the circulation of a newspaper  will  not be adversely affected  by  raising  its price.  It is then contended that even if the circulation is adversely  affected  thereby the fundamental rights  of  the newspaper  propritors  guaranteed by Art.  19(1)(a)  of  the Constitution  will not be infringed.  It is  also  contended that  the  legislation  in question  does  not  directly  or indirectly  deal with the subject of freedom of  speech  and expression   and  that  consequently  no  question  of   the violation of the provisions of Art. 19(1)(a) at all  arises. The  effect  of  the Act and the  Order,  according  to  the respondent,  would be to promote further the right of  news- papers  in  general to exercise the freedom  of  speech  and expression.  Thus, according to the respondent, neither  the intention  nor the effect of the operation of the law is  to take away or abridge the freedom of speech and expression of the petitioners. It  is  further  pointed out  that  all  newspapers  publish advertisements and that this is a trading activity.  It  is, therefore, necessary to differentiate 848 between this activity and an activity which would fall under Art. 19(1)(a).  The impugned Act and the Order according  to the   respondent   provide  in  the  public   interest   for restrictions  on the trading activity of newspapers.  It  is pointed  out that the space allocated to  advertisements  by newspapers varies from 46% to 59% and that these  advertise- ments  bring  in  a substantial revenue  which  enables  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 16  

newspapers  to  be  sold  at  a  price  below  the  cost  of production.   Placing reliance upon the statement  contained in  the  Report of the Press Commission it is  contended  on behalf  of the respondent that newspapers of  long  standing which have built up a large and stable advertisement revenue being in a more advantageous Position than newcomers in  the field  of journalism are in a position to squeeze  out  such newcomers with the result that they are able to destroy  the freedom of expression of others.  A free press, it is  said, cannot mean a press composed of a few powerful combines  and that in order to ensure freedom of press it is necessary  to secure full scope for the full development of smaller  news- papers. It  is further pointed out on behalf of the respondent  that the  diminution of advertisement revenue which would  result from  the  operation of the Price Page  Schedule  cannot  be regarded as an infringement of the right under Art. 19(1)(a) According to the respondent the economies of newspapers  and the  maximum  number of pages that a paper can give  with  a reasonable margin for advertisement space was worked out  by the Press Commission which also suggested a tentative  Price Page  Schedule.   In  formulating  the  schedule  the  Press Commission took into account various factors such as cost of (1) newsprint, (2) composing and printing, (3)  distribution (4)   commission  payable,  (5)  editorial  and   managerial expenses and (6) general overhead charges. The present Price Page Schedule is said to be based upon the one formulated by the Press Commission.                             849 It  is  further stated that the present measures  have  been adopted  upon  the recommendation of  the  Press  Commission which after stating that the proper functioning of democracy requires that every individual should have equal opportunity to  put forward his opinions suggested that measures  should be  adopted  to  reduce  the  differences  due  to  economic advantages  and  other causes to enable newcomers  to  start with a fair chance of success.  It is with this end in  view that  the present rates are stated to have been  prescribed. The  respondent  further  points out that the  bulk  of  the Indian language newspapers priced at 7nP. will not find  any difficulty  whatsoever in conforming to the requirements  of the order because they give five or less than five pages  on week days.  Only a few newspapers will be remotely  affected by the order but in their case the issue of large number  of pages  is due to factors not connected with the  functioning of  the  freedom of speech and expression  but  for  reasons connected  with  their  business  activities.    Newspapers, according  to  the respondent, are able to give  more  pages because of their large advertisement revenue or because they belong  to  a  group or chain of  newspapers  which  do  not entirely   depend  upon  the  individual  income   of   each newspaper. It  is said that the petitioners in particular are  able  to give additional number of pages because they devote a larger volume of space to advertisements than others and that  this is not something done ’in the lawful exercise of their right of  freedom  of  speech and expression or of  the  right  of dissemination of news and views.  It is, however, as already stated,  admitted  on  behalf  of  the  respondent  that   a newspaper  is a product sold below the’ cost of  production. The  conclusion  suggested by the respondent is that  it  is only  by  increasing the revenue from advertisement  that  a newspaper can increase the number of its pages. According  to  the  respondent,  the  true  purpose  of  the impugned legislation being the prevention

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 16  

850 of  unfair  competition  which has resulted  in  denying  to others  a  right  of  propagation  of  ideas  by  publishing newspapers, this legislation cannot be said to infringe  the right  of  freedom of expression of a newspaper but  on  the other  hand  said to be one which  promotes  and  encourages healhty journalism.  The impugned provisions will, according to  the respondent, affect only those classes of  newspapers which  unfairly  compete  with the smaller  one-a,  kind  of competition  which is considered by the Press Commission  as unhealthy and against the interests of healthy journalism in a growing democracy.  It is then said that "it is  necessary to  avoid  unfair competition and even  to  promote  healthy competition  that  papers have to be put on  a  criteria  of equality  and  that  this could only  be  done  by  directly restricting  the  publication of large number  of  pages  as against  the price charged." Then it is contended that  what is aimed at by the impugned legislation is the avoidance  of concentration of ownership without interfering with  healthy competition between equals equally situated. It  is further stated that not only was the statute  enacted on  the recommendation of the Press Commission but that  the Price Page Schedule itself was introduced in response to the demand   pressed   by   the   Indian   Language   Newspapers Association.  It is pointed out on behalf of the  respondent that  the  quantity of import of newsprint is based  on  the average number of pages of newspapers published in 1957  and that, therefore, no newspaper has the unrestricted right  to increase  the number of pages over the 1957 figure.   It  is also pointed out that the draft Price Page Schedule has been approved  by the Indian Language Newspapers Association  and that  this Association has recommended that the life of  the Price Page Act and Order should be extended by another  five to  ten years.  It is denied that the provisions of the  Act infringe   the   rights  conferred  by  Art.   14   of   the Constitution.                             851 We  have already indicated earlier, briefly, the  effect  of the  impugned  Act and the Order.  In  order  to  appreciate fully the contentions raised before us it would be useful to give in brief a summary of the provisions of the Act and  of the impugned Order. First,  there is the preamble which says that the object  of the  Act is to secure to newspapers fuller opportunities  of freedom  or  expression by  preventing  unfair  competition. This  is sought to be achieved by the regulation  of  prices charged for newspapers in relation to their pages.  In  this manner the legislature expects to prevent unfair competition among newspapers. Sub-section  3 of s. 1 provides that the Act shall cease  to have effect on the expiration of a period of five years from its  commencement except as respects things done or  omitted to  be done before the expiration.  The Act came into  force on September 7, 1956 and was thus due to expire on September 6, 1961.  The Attorney-General, however, told us that it was proposed  to  extend  to the life of the Act  by  a  further period of five years and we understand that its life has now been  extended for an indefinite period.  Section 2  defines "daily newspaper" and "newspaper". Section 3 is the most important provision in the Act.  It is this  provision  which empowers the  Central  Government  to regulate prices and pages of newspapers.  Sub-section (1) of s. 3 empowers the Central Government to regulate the  prices of newspapers in relation to their pages and sizes if it  is of opinion that it is necessary to do so for the purpose  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 16  

preventing  unfair  competition  among  newspapers  and   in particular  those  published in Indian languages.   It  also empowers the Government to regulate the allocation of  space to  be allotted for advertising matter.  Sub-section (2)  of that  section provides for an order under sub-s. (1)  to  be made in relation to newspapers generally or in relation to 852 any class of newspapers and further provides for the  making of different provisions for daily newspapers and  newspapers appearing  at  other periodical intervals as ",well  as  for different  classes of newspapers.  Sub-seotion (3)  provides that the Central Government, in making the Order, shall have due  regard to a reasonable flexibility with respect to  the fall  of news and flow of advertisements and  other  matters connected  with  the  normal working  of  newspapers.   Sub- section  (4) makes it obligatory upon the Central  Goverment to consult associations of publishers and such publishers as are  likely to be affected by the Order as it may think  fit with respect to the action proposed to be taken.  Section  4 prohibits   publication  or  sale  of  newspapers   in   the territories to which the Act extends in contravention of any of the provisions of an order made under s. 3. Section  5 provides for furnishing returns by newspapers  to the Press Registrar.  Sub-section (1)of s.    6     provides penalties for publication and sale of   newspapers        in contravention of the provisions of s.   4.  Sub-section  (2) of  s.  6 provides penalties for some  other  contraventions with  which we are not concerned.  Section 7, which  is  the last section, prohibits the Court from taking cognizance  of offences under the Act except upon a complaint in writing by the Press Registrar or by an officer authorised by him. It  will  thus  be seen that the Act  can  be  brought  into practical  operation only after the Central  Government  has taken  action  under sub-s. (1) of s. 3 and  made  an  order regulating any of the matters referred to in that section. On  October 24, 1960 in exercise of the powers conferred  by s.      3      the      Central      Government,       after consultationwiththe.Association of Newspapers and Publishers likely to be affected thereunder, made the Daily  Newspapers (Price and Page) Order, 1960.  This Order came into force on December 12, 1960.  It contains a schedule to the Act  which is in two 853 Parts,  Part  I  and  Part II.   Part  I  applies  to  daily newspapers  published  on  six days in a week  and  Part  II applies to weeklies.  Paragraph 3 of the Order provides that where  the price charged for daily newspapers is any of  the prices  specified in col.  I of Part I of the  Schedule  the total  number of pages of all the issues of  that  newspaper published  during  six days in a week shall not  exceed  the maximum  number  of pages shown against that price  in  that part.   Paragraph  4  deals with weekly  editions  of  daily newspapers.   Paragraph 5 provides that the total number  of pages of all the issues of a daily newspaper published shall not exceed the maximum number of pages assigned under  para- graphs  3  and  4 or under paragraph  3,  according  as  the newspaper  is  published on seven days in a week or  on  six days.  Then there is a proviso to this paragraph which  runs thus :               "Provided that where there is a weekly edition               of any newspaper referred to in clause (b) and               the  price charged therefor is different  from               that  charged on other days, the total  number               of  pages of all the issues of that  newspaper               published  during a week shall not exceed  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 16  

             maximum  number  of  pares  assigned  to  such               newspaper under paragraph 4 and five-sixths of               the  maximum  number of pages assigned  to  it               under paragraph 3." Paragraph 6 permits the publication of additional number  of pages  during  the  week not  exceeding  six.   Paragraph  7 permits  the  publication of supplements on January  26  and August  15 each year and also once in every quarter on  such special  occasion as the publisher thinks fit.  Paragraph  8 empowers the Central Government to permit the publication of additional  supplem  nts or special editions  in  excess  of those  referred to in paragraph 7 and prescribes the  number of pages which could be. published.  Paragraph 9 relaxes  to a certain extent the rigour of the provisions of  paragraphs 4 to 6, 854 in  that it provides that the daily newspaper shall  not  be deemed  to  have  contravened the provisions  of  the  Order unless  the  number  of  pages of all  the  issues  of  that newspaper published during any period of twelve  consecutive weeks  exceeds the quota assigned to such  newspaper  during that period. A  bare  perusal  of the Act and the  Order  thus  makes  it abundantly clear that the right of a news-, paper to publish news and views and to utilise as many pages as it likes  for that purpose is made to depend upon the price charged to the readers.  Prior to the promulgation of the Order every news- paper  was free to charge whatever price it chose, and  thus had  a right unhampered by State regulation to publish  news and views.  This liberty is obviously interfered with by the Order which provides for the maximum number of pages for the particular  price  charged.  The question  is  whether  this amounts  to  any abridgment of the right of a  newspaper  to freedom of expression.  Our Constitution does not  expressly provide  for  the freedom of press but it has been  held  by this  Court  that this freedom is included  in  "freedom  of speech and expression" guaranteed by cl. (1)(a) of Art.  19, vide Brij Bhushan v. The State of Delhi(1).  This freedom is not  absolute for, cl. (2) of Art. 19  permits  restrictions being placed upon it in certain circumstances.  That  clause runs thus               "Nothing in sub-clause (a) of clause (1) shall               affect  the operation of any existing law,  or               prevent  the State from making any law, in  so               far  as such law imposes  reasonable  restric-               tions  on the exercise of the right  conferred               by the said sub-clause in the interests of the               security of the State, friendly relations with               foreign  States,  public  order,  decency   or               morality, or in relation to contempt of court,               defamation or incitement to an offence."               (1)   [1950] S.C.R. 605. 610.  855 It is not claimed on behalf of the State that either the Act or the Order made thereunder can be justified by any of  the circumstances  set  out  in  this  clause.   The  right   to propagate  one’s  ideas  is inherent in  the  conception  of freedom  of  speech  and expression.   For  the  purpose  of propagating  his ideas every citizen has a right to  publish them,  to  disseminate them and to circulate  them.   He  is entitled  to  do so either by word of mouth or  by  writing. The  right  garanteed  thus  extends,  subject  to  any  law competent  under Art. 19(2), not merely to the matter  which he  is  entitled  to circulate, but also to  the  volume  of circulation.   In  other words, the citizen is  entitled  to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 16  

propagate  his  views  and reach any  class  and  number  of readers  as he choses subject of course to  the  limitations permissible  under  a law competent under  Art.  19(2).   It cannot be gainsaid that the impugned order seeks to place  a restraint on the latter aspect of the right by prescribing a price  page  schedule.  We may add that the  fixation  of  a minimum  price for the number of pages which a newspaper  is entitled  to  publish  is  obviously  not  for  ensuring   a reasonable  price  to  the  buyers  of  newspapers  but  for expressly  cutting  down the volume of circulation  of  some newspapers by making the price so unattractively high for  a class  of  its readers as is likely to deter  it  from  pur- chasing such newspapers. It  it; not disputed that every newspaper evolves a plan  of its  own  for carrying on its activities.. Bearing  in  mind factors  such as the place of publication, the class of  the reading  public  which may be excepted to subscribe  to  the paper, the conditions of labour, the price of material, the, availability of advertisements and so on it decides upon its size, the proportion of different kinds of matter  published in the newspaper, such as news, comments, views of  readers, advertisements etc., and the price to be charged.. The  plan evolved    by  it  is  sought to  be  rudely  shaken  if  not completely Upset by an order which it is open to the Central 856 Government to make under s. 3(1) with a view to  curtailment of  circulation of newspapers.  No doubt, under s. 3(4)  the Government   is   required  to   consult   associations   of publishers.  Apart from the fact that the Government is  not bound   by  the  opinion  of  the  associations,  the   mere circumstance that consultation with them is made obligatory, the  action of the Government in formulating an  order  does not  cease to be a direct interference with the  freedom  of speech and expression of a citizen. After the schedule comes into force it will not be open to a newspaper  proprietor to charge less than a certain  minimum price  if he wants to give a particular number of  pages  in his  newspaper.  If he should contravene this order he  will incur a penalty.  Similarly he cannot publish supplements in excess  of  four  as and when he chooses,  except  with  the permission  of Government.  The Order does not indicate  the circumstances which would entitle a newspaper proprietor  to secure  the special permission of  Government.   Apparently, whether  to allow an additional supplement or not  would  be dependent  on the sweet will and pleasure of the  Government and  this  would  necessarily  strike at  the  root  of  the independence of the press. In  Express  Newspapers  (Private) Ltd.,  v.  The  Union  of India(,)  this  Court has laid down that while there  is  no immunity to the press from the operation of the general laws it  would  not be legitimate to subject the  press  to  laws which take away or abridge the freedom of speech and expres- sion  or adopt measures calculated and intended  to  curtail circulation and thereby narrow the scope of dissemination of information,  or fetter its freedom to choose its  means  of exercising the right or would undermine its independence  by driving  it  to  seek Government aid.   This  Court  further pointed out‘ that a law which lays upon the Press  excessive and prohibitive, burdens which would restrict the (1)  [1959]   6.  C. R. 12. 857 3 circulation of a newspaper would not be saved by Art.  19(2) of the Constitution. It  must-be  borne  in mind that the  Constitution  must  be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 16  

interpreted in a broad way and not in a narrow and  pedantic sense.    Certain   rights  have  been  enshrined   in   our Constitution   as   fundamental   and,   therefore,    while considering the nature and content of those rights the Court must  not  be too astute to interpret  the  language-of  the Constitution in so literal a sense as to whittle them  down. On the other hand the Court must interpret the  Constitution in  a  manner which would enable the citizen  to  enjoy  the rights  guaranteed by it in the fullest measure subject,  of course, to permissible restrictions.  Bearing this principle in  mind  it  would be clear that the right  to  freedom  of speech  and expression carries with it the right to  publish and circulate one’s ideas, opinions and views with  complete freedom   and  by  resorting  to  any  available  means   of publication  subject again to such restrictions as could  be legitimately  imposed under cl. (2) of Art. 19.   The  first decision  of  this  Court in which this  was  recognized  is Romesh  Thapar v. State of Madras (1).  There.,  this  Court held that freedom of speech and expression includes  freedom of propagation of ideas and that this freedom is ensured  by the  freedom  of circulation.  In that case this  Court  has also  pointed out that freedom of speech and expression  are tie  foundation  of  all democratic  organisations  and  are essential  for  the proper functioning of the  processes  of democracy.  There and in other cases this Court pointed  out that  very  narrow  and stringent limits have  been  set  to permissible  legislative abridgment of the right of  freedom of  speech and expression.  In State of Madras v. V. G.  Row (2) the question of the reasonableness of restrictions which could be posed upon a fundamental right has been considered. This Court has pointed out that the nature (1) [1950] S.C.R. 594. (2) [1952] S.C.R. 597. 858 of the right alleged to have been infringed, the  underlying purpose of the restrictions imposed, the extent and scope of the evil sought to be remedied thereby, the disproportion of the  imposition and the prevailing conditions at  that  time should  all enter into the judicial verdict.   In  Dwarkadas Shrinivas  v. The Sholapur Spinning & Weaving Co., Ltd.  (1) this   Court  has  pointed  out  that  in   construing   the Constitution it is the substance " and the practical  result of  the  act of the State that should be  considered  rather than  its purely legal aspect. The correct approach in  such cases  should be to enquire as to what in substance  is  the loss  or  injury caused to the citizen and not  merely  what manner and method has been  adopted by the State in  placing the restriction. In Virendra v. The State of Punjab (2) this Court has observed at p. 319 as follows :               "It is certainly a serious encroachment on the               valuable  and  cherished right of  freedom  of               speech  and  expression  if  a  newspaper   is               ,prevented  from  publishing its  own  or  the               views  of  its correspondents relating  to  or               concerning  what may be the burning  topic  of               the day". The  impugned order requires all newspapers to  raise  their prices if they want to maintain the present number of pages. The  effect  of raising the selling price of  newspaper  has been  considered by the Press Commission.  In Paragraph  164 of the ’Report it is observed:               "The selling price of a paper would  naturally               have  an important effect on its  circulation.               In this connection we have examined the effect               of price-cuts adopted by two English papers at

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 16  

             Bombay on the circulation of those two  papers               as well as of the leading paper which did  not               reduce its price’ Prior to 27th October, 1952,               Times   of   India  which  had   the   highest               circulation  at  Bombay  was  being  sold   at               Rs.0-2-6               (1) [1954] S.C.R. 674.               (2) [1958] S.C.R. 308.               859               while Free Press Journal and National Standard               which rank next in circulation were being sold               for  Rs.0-2-0.  On 27th  October,  1952,  Free               Press Journal reduced its price to Rs, 0- 1 -0               and within a year bad claimed to have  doubled               its  circulation.   On  1st  July,  1953,  the               National Standard was converted into a  Bombay               edition of Indian Express with a selling price               of  Rs.  0-  1-6.  Within six  months  it  too               claimed to have doubled its circulation...Dur-               ing  this period the Times of India which  did               not  reduce  its selling  price  continued  to               retain  its readership.  Thus it would  appear               that Free Press Journal and Indian Express  by               reducing their price have been able to tap new               readership which was latent in the market  but               which   could  not  pay  the   higher   prices               prevailing earlier".               Then in’ paragraph 165 it is observed               "There  is another instance  illustrating  the               ,effect  of selling price on the  circulation.               The two leading Tamil papers Swadesamitran and               Dinamani  in Madras, anticipating towards  the               end of 1950 a steep rise in the price of news-               print, came to an understanding and raised the               price of their papers from Rs.0-1-0 to Rs 0-1-               6.  (These  papers normally carried 30  to  36               pages  per week).  The increase in price  from               Rs. 0- 1 -0 per copy to Rs. 0-1-6 was  brought               into  effect  from  1st  January,  1951.   The               result  was a drastic fall in  circulation  in               both  their  cases.  Subsequently in  view  of               this fall in circulation they agreed to reduce               their  prices  to the old figure.   While  the               original  fall  in circulation came  about  in               three months duration one paper took more than               9 months to recover its old circulation  while               the  other had not done so......... It may  be                             mentioned   in   this   connection   that   th e               circulation    of    a    competing     paper,               Thanthi......... did not rise during the three               860               months   when  the  two  leading  papers   had               increased  the  price .......nor did  it  fall               when  the  prices of the leading  papers  were               lowered  again.   The  conclusion,  therefore,               appears  to  be that over 33,000  readers  had               stopped  taking any papers because the  price-               had been raised;......... The period  examined               coincided  with  an  accentuation  of  draught               conditions  in Tamil Nadu; a certain  fall  in               circulation  all  round can be  attributed  to               these conditions.  Nevertheless, it cannot  be               denied  -that  a change in price  did  have  a               profound  effect on the circulation  of  those

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 16  

             two papers". Though the prices of newspapers appear to be on the low side it  is a fact that even so many people find it difficult  to pay that small price.  This is what has been pointed out  by the  Press  Commission  in  paragraph  52  of  its   report. According  to  it the most common reason for people  in  not purchasing  newspapers is the cost of the newspaper and  the inability  of the household to spare the  necessary  amount. This  conclusion is based upon the evidence of a very  large number  of individuals and representatives of  Associations. We  would,  therefore, be justified in relying upon  it  and holding  that  raising the price of a newspaper  even  by  a small amount such as one nP. in order that its present  size be maintained would adversely affect its circulation. It is, however, said that it is not necessary for newspapers to  raise  their  prices but that they  could  reduce  their number  of pages.  For one things, requiring  newspapers  to reduce their sizes would be compelling them to restrict  the dissemination of news and views and thus directly  affecting their  right under Art. 19(1)(a).  But it is said  that  the object  could  be achieved by reducing  the  advertisements. That  is to say, the newspapers would be able to devote  the same space which they are devoting today to the  publication of  news and views by reducing to the necessary  extent  the space  allotted to advertisements.  It is pointed  out  that news-  861 papers   allot   a   disproportionately   large   space   to advertisements,  It is true that many newspapers  do  devote very  large  areas to advertisements.  But then the  Act  is intended  to apply also to newspapers which may carry no  or very  few advertisements.  Again, after the commencement  of the  Act and the coming into force of the Order a  newspaper which  has  a  right to publish any  ’number  of  pages  for carrying its news and views will be restrained from doing so except  upon the condition that it raises the selling  price as provided in the schedule to the Order.  This would be the direct  and immediate effect of the Order and As such  would be  violative of the right of newspapers guaranteed by  Art. 19(1)(a). Again,  s.  3(1)  of the Act in so far  as  it  permits  the allocation of space to advertisements also directly  affects freedom  of circulation.  If the area for advertisements  is curtailed the price of the newspaper will be forced up.   If that happens, the circulation will inevitably go down.  This would be no remote, but a direct consequence of  curtailment of advertisements. We  would  consider this matter in another  way  also.   The advertisement revenue of a newspaper is proportionate to its circulation.  Thus the higher the circulation of a newspaper the  larger  would be its advertisement revenue.   So  if  a newspaper  with a high circulation were to raise  its  price its  circulation would go down and this in turn would  bring down  also the advertisement revenue.  That would force  the newspaper  either  to  close down or  to  raise  its  price. Raising the price further would affect the circulation still more  and  thus  a vicious cycle would set  in  which  would ultimately end in the closure of the newspaper.  If, on  the other  hand,  the  space for advertisement  is  reduced  the earnings  of a newspaper would go down and it  would  either have to run at a loss or close down or raise its price.  The object of the Act in regulating the space for advertisements is stated to 862 be to     prevant "unfair’ competition.  It is thus directed

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 16  

against circulation of a newspaper.  When a law is  intended to  bring  about  this-result  there  would  be  a’   direct interference  with  the  right  of  freedom  of  speech  and expression guaranteed under Art. 19(1)(a). Since the very object of the’ impugned law is to affect  the circulation  of  certain newspapers which, are  said  to  be practising unfair competition it is difficult to  appreciate how  it could be sustained.  The right to freedom of  speech and  expression is an individual right guaranteed  to  every citizen  by  Art. 19(1)(a) of the  Constitution.   There  is nothing  in el. (2) of Art. 19 which permits the  State,  to abridge this right on the ground of conferring benefits upon the  public in general or upon a section of the public.   It is not open to the State to curtail or infringe the  freedom of  speech  of one for promoting the general  welfare  of  a section  or  a group of people unless its  action  could  be justified  under a law competent under el. (2) of  Art.  19. It  is  admitted  that the  impugned  provisions  cannot  be justified  on  the  grounds referred to  in  the  aforesaid. clause. It was, however, contended on behalf of the State that there are   two  aspects  of  the  activities  of   newspapers-the dissemination  of news and views and the commercial  aspect. These  two  aspects,  it is said  fare  different  from  one another  and  under cl. (6) of Art. 19 restrictions  can  be placed  on the latter right in the interest of  the  general public.   So  far as it is relevant for the purpose  of  the argument el. (6) reads thus: "Nothing  in sub-clause (g) of the said clause shall  affect the operation of any existing law in so far as it imposes or prevent  the  State  from making any  law  imposing  in  the interests of the general public, reasonable’restrictions  on the  exercise  of  the  right conferred  by  the  said  sub- clause . . . . . . . . . . . . . 863 It  may well be within the power of the State to  place,  in the  interest of the general public, restrictions  upon  the right  of a citizen to carry on business but it is not  open to  the  State  to  achieve  this  object  by  directly  and immediately  curtailing  any other freedom of  that  citizen guaranteed by the Constitution     and    which    is    not susceptible of abridgement    on the same grounds as are Bet out in cl. (6) of   Art.  19.  Therefore, the          right of freedom of  speech  cannot be taken away with the  object of  placing  restrictions on the business  activities  of  a citizen.   Freedom of speech can be restricted only  in  the interests  of the security of the State, friendly  relations with foreign State, public order, decency or morality or  in relation  to contempt of court, defamation or incitement  to an  offence.   It  cannot,  like the  freedom  to  carry  on business,  be  curtailed  in the  interest  of  the  general public.  If a law directly affecting it is challenged it  is no   answer  that  the  restrictions  enacted  by   it   are justifiable under cls. (3) to (6).  For, the scheme of  Art. is  to enumerate different freedoms separately and  then  to specify  the  extent of restrictions to which  they  may  be subjected  and the objects for securing which this could  be done.  A citizen is entitled to enjoy each and every one  of the  freedoms  together  and el. (1)  does  not  prefer  one freedom  to  another.   That is the plain  meaning  of  this clause.   It follows from this that the State cannot make  a law  which directly restricts one freedom even for  scouring the  better enjoyment of another freedom.  All  the  greater reason, therefore for holding that the State cannot directly restrict  one  freedom by placing an  otherwise  permissible

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 16  

restriction on another freedom. Viewing  the question from this angle it would be seen  that the  reference  to  the Press being a business  and  to  the restriction  imposed by the impugned Act being referable  or justified  as a proper restriction on the right to carry  on the business of publishing a, newspaper would be 864 wholly  irrelevant for considering whether the impugned  Act infringes  or  does not infringe the freedom  guaranteed  by Art. 19(1)(a). The  only question that would then remain would  be  whether the impugned enactment directly impinges on the guarantee of freedom of speech and expression.  It would directly impinge on  this freedom either by placing restraint upon it  or  by placing restraint upon something which is an essential  part of that freedom.  The freedom of a newspaper to publish  any number of pages or to circulate it to any number of  persons is  each  an  integral part of the  freedom  of  speech  and expression.  A restraint placed upon either of them would be a direct infringement of the right of freedom of speech  and expression.   Perhaps an illustration would make  the  point clear.   Let  us suppose that the enactment  had  said  that newspaper "A’ or newspaper "B’ (ignoring for the moment  the objection  to the illustration based upon Art. 14 shall  not have more than a specified number of subscribers. Could such a  law  be  valid in the face of the  guarantee  under  Art. 19(1)(a)?   The  answer must unhesitatingly be  no,  because such  a law would be recognized as directly  impinging  upon the  freedom  of  expression which  encompasses  freedom  of circulation and to restrain the citizen from propagating his views to any other beyond the limit or number prescribed  by the statute.  If this were so, the fact that the legislation achieves  the same result by means of the schedule of  rates makes  no  difference and the impact on  the  freedom  would still  be direct notwithstanding that it does not appear  so on its face. Here  the Act by enacting As. 4 and 5 directly  prohibits  a newspaper  from exercising that right, should the  newspaper fail  to comply with the requirement of an order made  under s.  3.  This is a direct invasion of the  right  under  Art. 19(1)(a) and not an incidental or problematic effect thereon as 865 was found in the.  Express Newspapers case(1).  In that case the   challenge  to  certain  provisions  of  the    Working Journalists  (Conditions.  of  Service)  and   Miscellaneous Provisions  Act,  1955 on the round that  it  infringes  the right  guaranteed  by Art. 19 ,(1)(&) of  the  Constitution. That  challenge failed because the object of that  enactment was  to secure the amelioration of the condition of  working journalists and also because the law did not have the effect of  directly  interfering with the right  of  the  newspaper proprietors   guaranteed  under  Art.  19  (1)(a)   of   the Constitution.   The distinction between direct and  indirect effect of ’a law upon the freedom of press has been adverted to in that case.  At p.  135,  Bhagwati, J., who  spoke  for the Court has said  :               "All   the   consequences  which   have   been               visualised in this behalf by the  petitioners,               viz., the tendency to curtail circulation  and               thereby  narrow the scope of dissemination  of               information,       fetters       on        the               petitioners’freedom  to  choose the  means  of               exercising   the  right,  likelihood  of   the               independence of the press being undermined  by

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 16  

             having  to seek government aid;.........  etc.               would  be  remote  and  depend  upon   various               factors  which may or may not come into  play.               Unless  these  were the direct  or  inevitable               consequences  of the measures enacted  in  the               impugned  Act,  it would not  be  possible  to               strike  down  the legislation as  having  that               effect and operation." That the impugned Act was intended to effect circulation and thus  directly affect the freedom of speech  is  discernible also  from  the preamble which we way here quote.   It  runs thus:               "An  Act to provide for the regulation of  the               prices  charged for newspapers in relation  to               their pages and of matters connected therewith               for the purpose of preventing unfair               (1)   (1959) S.C..R. 12               866               competition  among  newspapers so  that  news.               papers   may  have  fuller  opportunities   of               freedom of expression." Its  object thus is to regulate something which, as  already stated,  is  directly  related  to  the  circulation  of   a newspaper.   Since  circulation of a newspaper is a part  of the  right of freedom of speech the Act must be regarded  as one directed against the freedom of speech.  It has selected the fact or thing which is an essential and basic  attribute of  the conception of the freedom of speech viz., the  right to  circulate one’s views to all whom one can reach or  care to  reach for the imposition of a restriction.  It seeks  to achieve  its object of enabling what are termed the  smaller newspapers to secure larger circulation by provisions  which without disguise are aimed at restricting the circulation of what  are  termed the larger papers  with  better  financial strength.  The impugned law far from being one, which merely interferes with the right of freedom of speech incidentally, does  so  directly  though it seeks to achieve  the  and  by purporting  to regulate the business aspect of a  newspaper. Such a course is not permissible and the courts must be ever vigilant  in guarding perhaps the most precious of  all  the freedoms  guaranteed  by our Constitution.  The  reason  for this  is obvious.  The freedom of speech and  expression  of opinion  is  of  paramount  importance  under  a  democratic Constitution  which envisages changes in the composition  of legislatures  and  governments and must  be  preserved.   No doubt, the law in question was made upon the  recommendation of  the Press Commission but since its object is  to  affect directly the right of circulation of newspapers which  would necessarily  undermine  their  power  to  influence   public opinion  it  cannot. but be regarded as a  dangerous  weapon which is capable of being used against democracy itself. In  these  circumstances  the Act and the  Order  cannot  be sustain d upon the ground that it merely 867 implements a recommendation of the Press Commission and  was thus  not  made with an ulterior object.   The  decision  in Hamdard  Dawakhana (Wakf) v. Union of India (1)  upon  which reliance  was  placed by the respondent in  support  of  the contention  that  where an enactment is  challenged  on  the ground  of violation of fundamental rights it is  legitimate to  take  into consideration several factors  including  the purpose  of  the legislation, the mischief  intended  to  be suppressed,  the remedy purposed by the legislature and  the true  reason for that remedy does not, therefore, arise  for consideration.  Similarly since the Act taken in conjunction

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 16  

with  the order made thereunder operates as a  restraint  on the freedom of Speech and expression of newspapers the  mere fact  that  its object was to suppress unfair  practices  by newspapers  would  not  validate them.  Carrying  on  unfair practices may be a matter for condemnation.  But that  would be  no  ground  for placing restrictions  on  the  right  of circulation. It  was  argued that the object of the Act  was  to  prevent monopolies  and  that  monopolies are  obnoxious.   We  will assume  that monopolies are always against  public  interest and  deserve  to be suppressed.  Even so, upon the  view  we have taken that the intendment of the Act and the direct and immediate  effect of the Act taken along with  the  impugned order  was to interfere with the freedom of  circulation  of newspapers the circumstance that its object was to  suppress monopolies and prevent unfair practices is of no assistance. The  legitimacy of the result intended to be "achieved  does not  necessarily  imply that every means to  achieve  it  is permissible;   for  even  if  the  end  is   desirable   and permissible,  the  means employed must  not  transgress  the limits  laid  down  by the Constitution,  if  they  directly impinge  on any of the fundamental rights guaranteed by  the Constitution it is no answer when the constitutionality (1)  [1960] 2 S.C. R. 671. 868 of the measure is challenged that apart from the fundamental right infringed the provision is otherwise legal. Finally it was said that one of its objects is to give  some kind of protection to small or newly started newspapers and, therefore, the Act is good.  Such an object may be desirable but  for attaining it the State cannot make inroads  on  the right of, other newspapers which Art. 19(1)(a) guarantees to them.  There may be other ways of helping them and it is for or the State to search for them but the one they have chosen falls foul of the Constitution. To  repeat,  the only restrictions which may be  imposed  on the,  rights of an individual under Art. 19(1)(a) are  those which cl. (2) of Art. 19 permits and no other. Coming to Writ Petitions 67 and 68 of 1961, considering that the  relief granted by us in the main petition will  redress the  grievance of the petitioners in these two petitions  it will be only of academic interest to decide whether they, as readers of newspapers, can complain of an interference  with their right under Art. (19) (1) (a).  We, therefore, refrain from making any Order on their petitions. Upon the view we take it would follow that s.     3(1)    of the Act, which is its pivotal provision, is  unconstitutional and  therefore, the Daily newspaper (Price and Page)  Order, 1960  made thereunder is also unconstitutional.  If a.  3(1) is struck down as bad, nothing remains in the Act itself. Accordingly  we  allow  this  petition  with  costs.    ’The petitioners  in  W.  Ps. 67 and 68 of 1961 as  well  as  the interveners will bear their respective costs. 869